On March 2, for the fourth time in two years, the Freedom Foundation and the Service Employees International Union (SEIU) squared off in a battle over open and transparent government and the right to inform childcare providers of their right, under the First Amendment, to opt out of union membership and dues payments.
Under the Public Records Act (PRA), the Department of Early Learning (DEL) and other agencies are required to release non-exempt information to those who request it. Well-established law entitles the Freedom Foundation to lists of publicly employed childcare providers’ work contact information.
The Foundation uses this information to contact providers and tell them about their First Amendment right to opt out of the union.
Not surprisingly, SEIU does not want the Freedom Foundation to get this message out, and they’ve repeatedly gone to court with the Freedom Foundation to keep this from happening.
In early 2016, for example, SEIU 775 argued the Freedom Foundation wanted the information for an impermissible, commercial purpose. The claim was false and the Court of Appeals rejected it. Nonetheless, SEIU 925 made a similar argument at the end of 2016 – and also failed.
SEIU 775 tried again in 2017 to stop the Foundation from receiving information—this time advancing the argument that releasing the relevant information was an unfair labor practice. Once again, they lost.
The union continues to lose these cases on the merits, but the lawsuits buy time and drain resources, thereby delaying the Foundation’s outreach.
In this most recent case, SEIU 925 sued DEL to stop release of provider lists with a novel argument. The union’s attorneys argued that in the wake of Initiative 1501 – the union-financed ballot measure of 2016 – the agency no longer had to surrender the information.
The catch is, I-1501 was passed more than a month after the Freedom Foundation requested the list, but SEIU 925 argued it applied retroactively. The trial court rejected this argument but, again, SEIU was granted a delay when it convinced the Court to stay release of the information until the union could file an appeal.
With arguments submitted and oral argument complete, we will soon find out if the court will make the right decision, coming out on the side of open disclosure, freedom of information and the First Amendment.
We expect a decision from the Court of Appeals in the coming months.